Home DARWIN H. MELIS & another vs. PROVINCETOWN GOLF RANGE, INC. & another.

359 Mass. 766

June 11, 1971

The defendants appeal from a final decree declaring that their deed to the plaintiff Melis is ambiguous and required interpretation, setting forth "the true description," and enjoining the defendants from claiming ownership in the land so described. They did not comply with S.J.C. Rule 1:15 (5), 351 Mass. 740 , by including in their brief or the record an outline plan "suitable for reproduction on one page of the printed law reports." The judge found that the description in the deed followed the description in a prior lease and that the parties in drawing the description in the lease lacked "artfulness and exactness in describing the southerly boundary." In effect he found "a latent contradiction in the description in the deed which permitted the use of extrinsic evidence to show what boundary the language of the deed was intended to describe." Ryan v. Stavros, 348 Mass. 251 , 259. He then found the intended boundary from the instructions given by the corporate defendant's treasurer to Melis's surveyor before the lease was executed and a building erected by Melis and from the subsequent conduct of the parties. The evidence is before us and a review of it does not indicate that the judge was plainly wrong.

Final decree affirmed with costs of appeal.

Home CAROLE HALPERT vs. FRED G. HOULE.

359 Mass. 766

June 29, 1971

This is an action of tort for personal injuries sustained when the plaintiff, while riding a bicycle, collided with a motor vehicle operated by the defendant. The only issue is raised by the plaintiff's exception to the judge's refusal to instruct the jury that "In approaching or passing a person on a bicycle the person operating the motor vehicle shall slow down and in passing such person shall do so at a reasonable and proper speed." G. L. c. 90, Section 14, as amended by St. 1961, c. 518, Section 1. There was no error. The requested instruction was not applicable to the evidence. The defendant was not passing the plaintiff within the meaning of the statute but rather the plaintiff and the defendant were approaching each other at right angles prior to the collision. See Stafford v. Jones, 292 Mass. 489 .

Exceptions overruled.

Home JOHN F. BARRY vs. TREASURER OF ESSEX COUNTY.

359 Mass. 766

June 29, 1971

This is a petition for a writ of mandamus brought by an employee of Essex County, seeking to require the respondent, the county treasurer, to recognize the petitioner's job reclassification and to pay him the rate of increased compensation that such a reclassification requires. The respondent demurred to the petition on five grounds. [Note 1] The trial judge sustained the demurrer on the fourth ground, namely, that the reclassification is illegal, improper and unauthorized

Page 767

by law. "If any ground of the demurrer is good it must be sustained." Wade v. Ford Motor Co. 341 Mass. 596 , 598. See Meskell v. Meskell, 355 Mass. 148 , 149. We conclude that the demurrer can be sustained on the ground that the petitioner has an adequate remedy by resort to a contract action to recover the salary in dispute. Mandamus will not lie where there is available another and effective remedy. Madden v. Secretary of the Commonwealth, 337 Mass. 758 , 761, and cases cited. We cannot say that an action for salary owed would not furnish full relief to the petitioner who has not been deprived of his employment. "It is not to be assumed, at least in the absence of facts not here alleged, that the . . . [respondent] will act in bad faith and refuse to make other payments to the petitioner in accordance with the decision in a single action of contract in which the controlling principle of law is settled." Police Commr. of Boston v. Boston, 279 Mass. 577 , 583. See Lattime v. Hunt, 196 Mass. 261 , 267; Daly v. Mayor of Medford, 241 Mass. 336 , 339; Lowry v. Commissioner of Agriculture, 302 Mass. 111 , 121. The order sustaining the demurrer is affirmed.

So ordered.


FOOTNOTES

[Note 1] "1. That the matters contained in said petition are insufficient in law to require the issuance of a writ of mandamus. 2. That the said petition does not state concisely and with substantial certainty the substantive facts necessary to require the issuance of a writ of mandamus. 3. That a claim for salary due is not a proper subject for the issuance of a writ of mandamus. 4. That a step in grade from J. 18-2 to J. 18-7 is illegal, improper, and unauthorized by law. 5. That Essex County is a necessary party and has not been joined at such action."